ALITY.

A contract providing that one party shall pay purchase money for real estate as it matures by the terms of the contract, and that the other party shall execute deeds for the land at a rate stipulated in the contract, is not void for want of mutuality.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig.

10.]

"Replying to yours of the 5th, this day received, would say that we refer to our last letter of January 21st, in which we inclose a deed for you to sign, and also our ultimatum of January 31st, and can only repeat that we will consider no other settlement at this time, either the

Action by the Federal Realty Company against Joseph Evins. From a judgment for plaintiff, defendant appeals. Affirmed.

Anthony Hall, of Paris, for appellant. J. T. Bullock, of Russellville, and R. C. Bullock, of Dardanell, for appellee.

or we will take action to protect our interests." This letter was written in response to one from appellee under date of February 5th, in which appellee stated:

"I have concluded to meet your demands by releasing to you by deed sixty lots, upon the payment to me of the amount due (find statement inclosed), five hundred and forty-five ($545.00) dollars. This will settle fully the first and second payments."

agreed read as follows:

"Now, therefore, it is hereby agreed by and between the parties hereto, in consideration of the mutual stipulations and agreements to be kept and performed by the several parties hereto, as follows:

"(1) The first party agrees that for the purpose of this contract he hereby agrees to sell and deliver unto the said parties of the second part the aforesaid lands and lots at a stipulated price of $6,000 to be paid in the manner hereinafter provided.

"(2) Five hundred dollars cash, the receipt of which is hereby acknowledged, and note for $500 due August 10, 1912, said note to draw interest after maturity at 6 per cent., and said second parties shall continue to make payments to the party of the first part as lots are sold, and this contract shall continue in force for the period of five years from date hereof, provided parties of the second part have made payments of at least $1,000 per year or upon the payment of the balance of the said $6,000, together with interest upon deferred payment or payments at the rate of 6 per cent. after August 10, 1912, per annum, then said party of the first part or assigns is to deed to the party of the second part, any and all lands or lots which have not been previously deeded.

"(3) It is further agreed by and between the parties hereto that the party of the first part is to release by deed lots at the rate of $30 each for all money received by him, such deed to be executed and delivered to the parties of the second part or any person designated by them; same to be executed and delivered within 15 days from date of payment."

ment on its part to undertake the sale of said lands for appellee at a fixed price, and that the instrument cannot be construed as a contract for the sale of real estate, because there is no mutuality of obligation.

We think appellee correctly construed this contract. We find nothing in its terms to support appellant's contention that the writing set out constitutes a mere undertaking on the part of appellant to sell said lots for appellee at a fixed price, and this is the point upon which the parties disagree. We think this is clear, not only from the terms of the contract, but that this was the understanding of the parties thereto appears from their action under it. One thousand five hundred dollars were paid before there was a demand for any lots, and, while article 3 of the contract does give appellant the right to demand a deed for each $30 of purchase money paid, article 2 of the contract requires appellant to make payments at the rate of $1,000 a year, whether any lots are sold or not.

The court below construed the contract as we have done, and gave judgment against appellant for the $1,500 of the purchase money then due, and declared this sum to be a lien upon the property in question, and directed its sale unless the same should be paid within the time fixed by the decree, provision being made in the decree for the retention by the commissioner of any sum of money received by him in excess of the sum adjudged to be due, this excess to be applied to the payment of the unpaid balance upon its maturity.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1138, 1221, 1705, 1713, 1716, 1717, 1727, 1728; Dec. Dig. 741.]

Appeal from Circuit Court, Saline County; W. H. Evans, Judge.

Clarence Dewein was convicted of murder. Upon affirmance of the judgment he brought a writ of error coram nobis in the Saline circuit court, praying an inquiry into his

From a

"The witnesses are reputable citizens of Saline county, and in passing upon the motion and in considering their testimony, only their knowledge of the conditions will be considered."

Chas. P. Johnson and Jones & Owens, of Little Rock, for appellant. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

McCULLOCH, C. J. Appellant, Clarence Lee Dewein, was convicted in the circuit court of Saline county, Ark., on April 25, 1914, of the crime of murder in the first degree, and on appeal to this court the judgment of conviction was affirmed. 170 S. W. 582. The crime which he was adjudged to have committed consisted of the killing of one L. H. Thompson, an aged man, in the town of Benton, and the proof showed that it was committed by appellant and one Joe Strong, and that they killed Thompson for the purpose of robbing him of his money. Both of the men were convicted and sentenced to death by electrocution. Subsequent to the affirmance of the judgment by this court, appellant filed in the Saline circuit court a petition for a writ of error coram nobis, praying for an inquiry into the question of his sanity at the time of the trial, and that the judgment of conviction be set aside on the ground that he was insane at the time of the trial and without capacity to conduct his defense. The writ was duly issued by the judge of the circuit court, and at the next term there was a trial of the issue before a jury, which resulted in a verdict establishing appellant's sanity at the time of his conviction. An appeal has been duly prosecuted to this court.

[1] Appellant presented to the trial court a petition for a change of venue. The petition was in the form prescribed by statute and supported by the affidavits of two qualified electors of the county, who, it is claimed, were credible persons. The statute provides that a petition for a change of venue in a criminal case must be supported "by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way." Kirby's Digest, § 2318. When the question of insanity of a convicted person is to be submitted to the jury on writ of error coram nobis, after conviction and sentence, the petitioner is entitled to a change of venue as in other criminal cases. Adler

ute, the only inquiry upon which the trial court may enter is as to the qualifications of the supporting witnesses; and if it be found that they come within the definition of the statute, as "credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way," the court has no further discretion, and the order for a change of venue must be made. The court may, however, in order to pass upon the credibility of the supporting witnesses, have them called before the court and examined. That is not the exclusive method of passing upon the question, but it is the familiar one more often pursued in this jurisdiction. The court may inquire into the means of knowledge of the witnesses and as to the probability of the petitioner being able to obtain a fair and impartial trial, but only for the purpose of reaching a conclusion upon the credibility of the supporting witnesses.

[4, 5] It is insisted, in the first place, that the trial court found, as a matter of fact, that the witnesses were credible persons, and that his order overruling the motion for change of venue was inconsistent with that finding. The argument is based upon the statement made by the trial judge to the effect that the witnesses were "reputable citizens of Saline county"; but the remainder of the sentence uttered by the court at the time shows that this statement was not meant as a finding that the witnesses were credible persons within the meaning of the statute, for the judge said in the same connection that there was no question raised as to the credibility of the witnesses, "except as to their knowledge as to the condition of the minds of the inhabitants in the county." It is true that the word "reputable" is laid down by the lexicographers as synonymous with the word "credible," but the two words are not synonymous in the fullest sense, and cannot be treated as synonyms when considered in interpreting our statute on the subject of change of venue. A person may be of good repute in the community in which he lives, and yet, by reason of a reckless and inaccurate oath, based upon insufficient knowledge, fail to be a "credible" person within the meaning of the statute. A credible person is one who has the capacity to

testify on a given subject and is worthy of belief; and one who lacks knowledge on the subject under investigation is not a credible person to be accepted as worthy of belief in that particular inquiry. So we are of the opinion that the trial judge did not mean to declare a finding that the witnesses were credible persons within the meaning of the statute, and that we must test the correctness of the court's conclusion on that issue by a review of the record as presented to the judge upon the inquiry as to their credibility.

[6, 7] Now, the witnesses did not pretend to have a general knowledge of the state of the mind of the citizens of all portions of the county; nor did their knowledge extend to the state of mind of the people with reference to the issues to be presented on the trial. On the contrary, they appear to have rested their conclusions entirely upon the fact that there was a widespread belief in the minds of the inhabitants of the locality, of which the witnesses were advised, that appellant was one of the parties who had robbed and slain L. H. Thompson, and the supporting witnesses seem to have drawn the conclusion therefrom that those who shared that belief were necessarily prejudiced to the extent that appellant could not get a fair trial upon the issue as to his sanity or insanity at the time of the trial. Neither of the witnesses gave any evidence whatever of any widespread prejudice against appellant, further than the inference to be drawn from the fact of belief in the established participation of the appellant in the killing of Thompson. It did not necessarily follow that, because the belief was general that appellant had participated in the killing of Thompson, there existed in the minds of the inhabitants such prejudice as would prevent his obtaining a fair and impartial trial in the county. On the contrary, it is fair to assume that an acceptance of the adjudged fact of appellant's participation in the killing did not create in the minds of intelligent people such a prejudice as would prevent him obtaining a fair and impartial trial on the issue as to his sanity at the time of conviction. It is shown, too, that there was an effort made to secure a pardon, and that a large number of the prominent citizens of the county presented a protest against executive interference; but that protest, and the agitation which brought it about, was not shown to have been so general as to prevent appellant from obtaining a fair and impartial trial. Upon the whole we cannot say, from a perusal of the testimony, that the court erred in finding that the supporting witnesses to the petition for a change of venue were lacking in sufficient knowledge and rested their conclusions upon erroneous premises to the extent that they would not be deemed credible persons

ing upon a question of this kind, much is left to the fair discretion and judgment of the trial court, and each case must be determined by its own particular facts. Ford v. State, 98 Ark. 139, 135 S. W. 821. We fail to find that there is any abuse of the court's discretion in this case, and the order refusing the change of venue will not be disturbed.

[8] The next ground urged for reversal is that the court erred in passing on the qualifications of veniremen. There were numerous exceptions in that regard, and appellant exhausted all of his challenges, so that, if it be found that incompetent jurors were taken upon the jury, or that appellant was compelled to exhaust any of his peremptory challenges on incompetent veniremen, a reversal of the case must follow. It would serve no useful purpose to set out at length the testimony of the veniremen on their voir dire, but it is sufficient to say that the only question as to their competency relates to the matter of opinion on the question of the guilt or innocence of appellant on the original trial. Many of the veniremen stated that they had formed and expressed opinion as to the guilt of appellant's participation in the killing of Thompson, but all of them stated that they had no bias or prejudice against him or any opinion as to the question of his sanity at the time of the trial, and could give him a fair trial on that issue.

Now, the question under investigation at this trial did not relate to the matter of appellant's participation in the killing of Thompson, or even to the question of his sanity at the time the killing occurred, but the inquiry was to be confined solely to the question of appellant's sanity or insanity at the time of the original trial. Therefore an opinion formed and expressed by a venireman concerning the question of appellant's participation in the killing did not necessarily create such a prejudice as would prevent him from sitting as a juror; nor was it such an opinion as rendered him incompetent as a juror. All of the veniremen stated that, notwithstanding the opinions they had formed as to the original question of appellant's participation in the crime, they were openminded as to his sanity or insanity at the time of the trial, and could give him a fair and impartial trial on that issue. They were therefore competent jurors, and the court did not err in overruling appellant's challenges.

[9] It is insisted, finally, that the testimony adduced in the trial established by overwhelming preponderance, if not beyond dispute, that appellant was suffering from mental disease which incapacitated him from knowing the difference between right and wrong, and that he was insane, not only at the time of the trial, but at the time of the killing of Thompson. Appellant was about